### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE O ct obe r 25, 200 6 S es sio n

STA TE OF TEN NES SEE v. JIMMY DA LE P ICKET T

Direc t Appeal from the Circ uit Court for F ranklin County

No. 15548 Thomas W. G raham , Judge

No. M2005- 02434-CCA -R3-C D - F iled Fe bruary 14, 2007

A Fr anklin CountyCircuit Court jury convicted the appellant, Jim my Dale Picke tt, of

first deg ree pr e me dit a te d mu rd e r and esp e c ia lly a g g ra va te d r ob be ry , a ndthe tr ia l c ou rt se nte nc e d h im t o

concur rent sente nces of life and twenty y ear s, respe ctively . On appe al, the appe llant claims (1) that he is entitled to a re trial bec ause the State violated the rule of seque stration; (2) that the tria l court

err ed by deny ing his motions t o suppress his confe ssions; (3) that the trial court erre d by allowing the jury to use a tra nscript, which ha d not been introduc ed into evidenc e, during deliberations; (4) that th e tr ia l c ou rt

e rr e d b y re fu sin g to g ive the jury a c or pu s d e lic ti i ns truc tio n; a nd(5 ) tha t th e Sta te

c omm itt e d p ro se c uto ri a l mi sc on du c t du ri ng c l o s i n g a r g ume nts . F ind ing no e rr or s r e qu ir ing re ve rs a l,

we a ff ir m th e jud g me nts of

the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Ci r c uit Co ur t a r e Affir m e d.

N OR MA M C G EE O G LE , J
., delivere d the opinion of the court, in which D AVI D H. W ELLES a ndJ.C. M C L IN , J J
., joined.

Phi lip A. Con dr a

a ndQu ish a

L ig ht, Jasp e r, Te nn e sse e , f or the app e lla nt, Jimmy

Da le Pic ke tt.

P a u l G

. S u m m e rs , Atto rn e y G e n e r a l a n d R e p o r t e r ; C

. D a n i e l L i n s , A s s i s t a n tA t t o r n e y G e n e r a l ; J. Mic ha e l Tay lor , Dis tr ic t Atto rn e y Ge ne ra l; an d Stev e n Bl ou nt, As sis ta nt Dis tr ic t A tto rn e y Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

I. F ac tu al B ac kgr ound

Th e app e lla nt d oe s n ot c on te st the su ff ic ie nc y of the e vid e nc e . T a ke n in the l ig ht m os t fa vo ra ble to the Sta te , th e e vid e nc e a t tria l r e ve a le d that on Tu e sd a y , O c tob e r 1 4, 20 03 , B e ve rl y Searle s telephoned t h e Fr ankli n CountySheriff’ s Depa rtment and re ported that he r brother , J ohn Ha rl a n M oo re , h a d n ot r e po rt e d to wo rk that da y a ndwa s mi ssi ng . T he ne xt ev e nin g , O ff ic e r D us tin-2-

Foster went to the Pickett f

armhouse on Old Salem-L exie Road and spoke with the appellant. He asked the appellant a

bout Moore, and the appellant ga ve Officer Foster direc tions to Moore’s tra iler. The a ppellant see med ner vous, and Off icer Foster noticed a sm a ll y ellow Toy ota pickup truc k parke d at the fa rmhouse.

Offic er F oster and a nother off icer drove to Moore ’s trailer . Whe n t hey g ot out of the ca

r, they immediately smelled a decay ing body

. Offic er F oster telephone d I nvestig ator Mike B ell, who told the office rs to g o into the trailer. The office rs pried open the door, we nt into the trailer’s r ear bedroom, a nd found Moore dead in his bed. They immediately left the tra iler, sec ured the scene , and telephoned Investig ator B ell.

When Investig ator Be ll a

rrived at the scene , he put on a respirator and went into the victim’s be dr oo m. B loo d s platte r w a s o n th e be dr oo m w a lls , b ut a c le a n s he e t c ov eredthe vic tim

. I nv e sti g a tor

B e ll r e qu e ste d h e lp f

ro m th e Te nn e sse e B ur e a u of I nv e sti g a tio n (T B I ) a nd sp ok e wi th J ean G rant, the vic tim’s neighbor

. Gra nt told I nvestig ator Be ll that she last saw the victim alive on the Saturday

or Sunday

morning befor e office rs found his body and that she saw the victim come out of his tr a ile r a ndwa lk p a st h e r h ou se . T he app e lla nt d ro ve by , b le w the ho rn , a ndthe vic tim g ot i nto the appe llant’s car . The two men the n drove ba ck to the victim’s trailer . Gra nt often saw the appellant c oming a nd g oing f rom the trailer

but did not know if he lived there with the victim. Af ter speaking with Grant a n d some of the victim’s other neig hbors, I nvestig ator B ell decide d that he neede d to speak with the a ppellant. At 3:00 a.m. on Octobe r 16, I nvestig ator B ell and seve ral office rs left the vic tim’s trailer and w ent to the Pickett f armhouse. When the y

arrived, I nvestig ator Be ll knocked on the front door, but no one answere d. The officer s went to t he bac k door and notice d that it was standing open. The appellant wa s g one, but a c ooler c ontaining ic e and beer was in t he back of the y ellow pickup truc k. Of fi cer s immediately

beg an sea

rching for the a

ppellant, and surrounding counties sent manpowe r to help with the sea rch.

On the eve ning of

October 16, a g roup of of

fice rs appr oache d an aba ndoned tra ctor tra iler ri g a nd fo un d the app e lla nt hid ing in the ri g ’s sle e pe r be rth. Th e y arr e ste d him
, a ndTu ll a ho ma Pol ic e De pa

rt me nt D e te c tiv e Ea

rl Mo rs e inf

or me d th e app e lla nt o f h is ri ghts

. F ra nk lin Cou nty Sheriff’ s Depa

rtment L ieutenant Da nny

Warren put the a

ppellant into his police vehicle and a sked the appe llant if he wa nted to tell him what had happe ned to the victim. The appellant said y es and told Lieutenant Warren the following : T he victim ha d been stealing money from the appellant. On Friday , October 10, 2003, the victim stole twenty dollars out of the a

ppellant’s wa llet. About 7:00 a.m. the next morning, the a ppellant stood i n the doorway of the victim’s bedr oom and shot the victim with a six teen- g aug e shotgun w hile the victim was sleeping in bed. Afte r the shooting , the appellant c overe d the victim with a sheet and took the vi ctim’s wallet out of a pa ir of pants that we re

on the b e d

. T h e ap p e ll a n t t o o k o n e h u n d r e d s ix d o ll ar s o u t o f th e w a ll e t, d r o v e to th e Sp e e dway Ma rk e t, a ndbo ug ht be e r. Th e app e lla nt sa id that he ha d be e n pla nn ing to kil l the vic tim fo r a t le a st tw o w e e ks

.

L ieutenant W arr en drove the appellant to Be an’s Creek, where the appellant showe d him the sh otg un he ha d u se d to kil l th e vic tim a ndthr ee li ve sh otg un sh e lls . T he app e lla nt a lso tol d-3-

L ieutenant Warr en that he had thrown the victim’s wallet into a cr eek in Moore Countyand that he had consume d antifre eze. L ieutena n t W ar ren dr ove the a ppellant to the emer g ency room at the Southern Tenne ssee Medical Center (SMTC). The next day , L ieutenant Warr en drove to Moore Countyand found the victim’s wallet. The w allet containe d the title to a 1981 Toy ota pickup in the

na me of Jer e my Pic ke tt.

F a y e Jer nig a n, a

nu rs e in the e me rg e nc y

ro om, te sti fi e d th a t th e app e lla nt d id n ot a pp e ar t o be intox icated on the night of October 16. The appellant told her that he dr ank at lea st one-half can of antifr eeze be cause he had shot a man with a si x teen- g aug e shot g un. The a ppellant was tre ated f

or inge sting antifre eze and was transfe rre d to V ander bilt Hospital. Fr anklin CountyS h eriff ’s Depa rtment Deputy

Ricky Summers testified t hat he sat with the appellant while the appe llant was being trea ted at the SMTC and that the appellant sa id, “All this treatment for just killing somebody .” Tw o o the r o ff

ice rs, who we re a ssi g ne d to g ua rdthe app e lla nt at th e SMT C a ndVa nd e rb ilt , a lso testified that the appe llant said he killed a man.

Af te r b e ing tr e a te d a t V a nd e rb ilt , th e app e lla nt w a s tr a ns fe rr e d to Ha rt on Ho sp ita l in Tullahoma. On October 20, TBI Special Ag ent Kenda ll Bar ham visited the appe llant in his hospi tal room, advised the a

ppellant of his Mira nda rig hts, and interviewe d him. He took notes during the int e rv ie w, we nt t o h is off ice a ndty pe d o ut the app e lla nt’ s st a te me nt, a ndre turne d to the ho sp ita l. The a ppellant read and signe d the s tatement. Acc ording to the s tatement, the a ppellant was living with the victim, a nd the victim wa s stealing money from him. The appellant g ot “ fed up [and] pissed off” about t he victim ’s s tealing and decided that he “would be doing Harlan a favor by killing him.” On Saturday
, October 11, 2003, the appellant woke up ear ly
, saw the victim in th e a p p ell ant’s bedroom, a nd saw the vic tim going throug h the appe llant’s bil l fo l d

. T he appe llant did not say anything to the victim and we nt back to sle ep. He woke up ag ain about 5:30 a.m. and w alked to the doorwa y of the victim’s bedr oom. The vi ctim was asleep, ly ing on his back, and w as fa cing toward a window but awa y from the appellant. The appellant shot the victim, picked up the empty shotgun shell, and cove red the victim with a sheet that had been lay ing on the floor. The a ppellant ca

rried the vic tim ’s pa nts to the liv ing ro om a ndtoo k mo ne y ou t of the vic tim ’s wa lle t. H e le ft the ho us e and drove awa y in the vi ctim’s y ellow pi ckup truck. Ag ent Barha m testified that the police f ound

a pa ir of pa nts in the vic tim ’s liv ing ro om a ndthat th e app e lla nt a pp e are d tr

uth fu l.

For ensic Patholog ist Char les Har lan per formed the victim’s autopsy on October

17, 2003, and testified that the vic tim died of a shotg un wound to the fore head. T h e v i ct i m ’s b o d ywas signific antly

decay ed, and D r. Ha

rlan stated that the victim had been d ea d “a b o u t a week, g ive or
t ak e afe w d ay s

. ” H e s t at ed t h at fl u i d s co l l ec t ed fr o m t h e v i ct i mwe re n o ts u i t ab l e f o r t o x i co l o gy tests due to the body ’s condition. TBI Special Ag ent For ensic Scientist S h el l y Be tts ex amined a plastic shot sleeve, w adding
, and ninetee n lead pe llets recove red f rom the victim and conc luded that the y we re c on sis te nt w ith a

sixte e n- g a ug e sh ot gun sh e ll. TB I Spe c ia l A g e nt F or e ns ic Sc ie nti st Robert E. McF adden te stified that he found the appellant’s fing erprint on a g lass jar in the victim’s kitchen. He also found the appellant’ s fing erprint on a beer can and a c iga rette pa ck in the victim’s living room.-4-

The a ppellant’s ex-wife te stified for the a ppellant that he wa s m ee k
, d id not have a ba d temper, a nd was not violent. Her curr ent husband testified that he had known the appe llant for ten
y e ars a ndha d n e ve r s e e n th e app e lla nt a ng ry or vi ole nt. Th e jury

c on vic te d th e app e lla nt o f f ir st d e g r e e p r e m e d i t a t e d m u r d e r a n d e s p e c i a l l y a g g r a v a t e d r o b b e r y.

II. Ana lys is

A. Violation of the Rule of Seque stration

First, the a

ppell an t claims that he is entitled to a new trial bec ause some of the State’s

w i t n e s s e s “ b l at an t l y , u na sh a me dly , a ndhaug hti ly ” vio la te d T e nn e sse e Rul e of Ev ide nc e 61 5, the ru le of se qu e str a tio n. Th e Sta te c on te nd s th a t th e app e lla nt h a s w a ive d th is i ssu e be c a us e he fa ile d to object at tria l and that his “bald a ccu s at i o n s ” are not supported by the re cord. We a g ree with the State that the appe llant has waive d this iss ue.

I nvestig ator B ell testified fo r t he State on the se cond day of trial. On c ross-examination, defe nse counse l asked B ell if he re membere d meeting with some people, including the prosec utors and Ag ent B arha m, afte r t rial adjourned t he previous day

. I nvestig ator Bell answe red, “ Possibl y ,” and counse l then asked him, “Were discussions he ld at that moment about how the testimony had develope d during the day ? ” I nvestig ator Be ll a g ain answe red, “Possibly ” and sai d
, “I don’ t

reme mber.” He then a cknowledg ed the mee ting oc curr ed but said he did not reme mber exactly what was said dur ing the meeting

. Ag ents Be tts and McFadde n testified for the State on the third day of trial. On c ro s s -examination, Ag ent B etts testified that the pre vious day , she hea rd Ag ent B arha m ask Ag ent McF adden a

bout w hether the window in the victim’s be droom had been open or closed during the TB I ’s investig ation. Ag ent McF adden a cknowledg ed on cr oss-examina t ion that the previous day , Ag ent B arha m broug ht “ the question of the ha lf opene d window” to his attention. He said that Ag ent B arha m had not y et testified whe n Ba rham talke d with him about the window.

Tenne ssee Rule of E vidence 615 is the rule of seque stration and is “now c olloquiallyref err ed
to a s ‘ Th e Rul e .’ ” Ne il P. Cohe n et al
., Te nn e sse e L a w of Ev ide nc e , § 6. 15 [2] (5 th e d. 20 05 ). Rul e 615 provides that “[a]t the reques t o f a party the court shall order w itnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing.

. . . The c ourt shall order all persons not to disclose by

any means to excluded witnesses a ny live trial testimony

o r ex hibits create d in the

c ou rt ro om b y a wi tne ss. ” Te nn

. R. Ev id. 61 5. Th e pu rp os e of the Rul e is t o “ pr e ve nt o ne wi tne ss from hea ring the testimony

of anothe r and a djusting his testimony acc ording ly .” S tate v. Ha rris, 839 S.W. 2d54 , 6 8 ( Te nn . 1 99 2). Th e Rul e ma y be inv ok e d a t a ny

tim e a ndis m a nd a tory

up on its invocation. See State v

. An t h o n y , 836 S.W .2d 600, 605 (Tenn. Crim. App. 1992) . There is no presc ribed sanc tion for a violation of the Rule; rather, a trial court r etains discretion to impose the appropriate sanc tio n

. See State v. B lack, 75 S.W.3d 422, 424 (Tenn. Crim. App. 2001). F urther,

“ [t]he de c isi on to e xclu de or a llo w the te sti mon y

is a ma tte r w ith in the dis c re tio n o f the tr ia l c ou rt , subject to a showing of abuse and pre judice to the complaining party .” I d. at 424-25.-5-

The appellant claims that I nvestig ator Bell di scussed the e vidence with the prosec utors afte r the first day of trial and then “ca rried the information” to A g ents Be tts a nd McF adden. H e conte nds that his acc usations are “abunda ntly supported by

the testimony

of the violators.” I n a sepa rate , but

re la te d iss ue , the app e lla nt a lso c la ims that he wa s de nie d du e pr oc e ss by “ [c]a rel ess ut ter anc e s, made in the pr esenc e of a

sequester ed witness who then pursued it with two other State’s w itnesses”; that the State’s fa ilure to disclose the a fter- hours meeting violates Br ady v. Mary land, 373 U.S. 83, 83 S. Ct. 1194 (1963); and that Ag ents Ba rham, B etts, and McF adden “ could have been pr ohibited from testify ing a s a sanc tion for this improper conta ct.”

Our re view of the rec ord re flec t s that befor e the f irst State witness testified, the Rule was invoked. The de fense briefly questioned I nvestig ator B ell during cross-e x amination about whethe r

a mee ti n g o c c u rr e d a f

te r th e f ir s t d a y o f tria l a n d w h e th e r

th e p ar ti c ip a n ts d is c u s s e d th e e vidence

. The de fense also brief

ly questioned Age nts Be tts and McFa dden about whe ther they had discussed evidenc e. Howeve r, t he appellant never alleg ed at trial that the witnesses violated the Rule, never objected to a ny

of the witnesse s’ testimony
, and never reque sted a jury -out hea

ring to determine the fa c ts o f the vio la tio n o r preju di ce to th e app e lla nt. Th e re fo re , w e ho ld tha t he ha s w a ive d th e se iss ue s. Se e Te nn . R. Ap p. P. 36( a ) (p ro vid ing that ou r r ule s d o n ot r e qu ir e “ re lie f [t o] be g ra nte d to

a pa rt y re sp on sib le fo r an e rr or

or wh o f a ile d to take wh a te ve r a c ti on was re a so na bly a va ila ble to preve nt or nullify the harmful eff ect of an error” ). Moreove r, g iven the over whelming evidenc e of the appe llant’s g uilt, we discern no plain error . See Te nn. R. Crim. P . 52(b).

B . M oti on s to Sup pr e ss
Prior to trial, the appe llant filed three motions t o suppress his statements to police. The trial court he ard the first motion during one su p p re ssion hearing and hea rd the re maining two motions du ri ng a se c on d s up pr e ssi on he ari ng . T he app e lla nt c la ims that th e tr ia l c ou rt e rr e d by fa ili ng to g ra nt h is m oti on s to su pp re ss h is s ta te me nts a nda ny e vid e nc e ob ta ine d a s a re su lt of his state me nts

. He c on te nd s th a t th e tr ia l c ou rt “ c hose to rearra nge

. . . f a c ts l e arn e d lo ng a ft e r the [ap pe lla nt’ s]

arr est” a nd “injecte d its own facts” during the suppression hea ring s. The State ar g ues that the trial court prope rly

denied the a

ppellant’s motions. W e ag ree with the State.

1. I nvoluntary

Confession

I n th e app e lla nt’ s f

ir st m oti on to s up pr e ss, he a rg ue d tha t the tr ia l cou rt sh ou ld s up pr e ss h is
state me nts to p oli c e be c a us e he (1 ) d id n ot kno wi ng ly , in te lli g e ntl y , a ndvo lun tari ly wa ive his Miranda rights; (2) was sec retly audiotaped in violation of his rig ht ag ainst self-incrimination; and (3) was questioned by police afte r an attorney had been a ppointed to repre sent him. At the motion hearing, D etec tive Morse testified f or the State that on October 16, 2003, his superior off icer asked him to take the SW AT team to the L exie Crossroa ds are a of Franklin County to help look for a ma n involved in a shooting. D etec tive Morse a nd some of his c olleag ues with the specia l opera tions force went to the location. About fiftee n or t wenty minutes afte r t hey arrived and started se arc hing, the y approa ched a n old, abandone d trac tor trailer rig

. A wasp nest was in t he passe ng er door , so another of fi c e r o pe ne d th e dr ive r’ s si de do or , lo ok e d in to t he ri g ’s sle e pe r b e rth, a ndfo un d th e app e lla nt.-6-

Detec tive Morse e stimated that the temperature in the rig was a bout one hundre d ten deg ree s and said, “The re w as no re ason any body could conc eivably

be living in that tra ctor-tr ailer.”

Th e app e lla nt c a lml y

e xite d th e ri g , o ff

ic e rs pla c e d him on the g ro un d a ndha nd c uf fe d h im, and De tective Morse rec ited Miranda warning s. Although the appellant was ly ing on the g round on his stomach, he turne d hi s h ea d and looked up at Detec tive Morse while Mor se wa s rec iting the appellant’ s rig hts. Detec tive Morse stated t h at h e asked the appe llant twice if he understood the

warnings, a nd the appe llant said y es twice . The a ppellant later led offic ers to B ean Cre ek, whe re they found a sixteen-g aug e shot g un and some shotg un shells. Detec tive Morse stated that the

app e lla nt s ou nd e d “ no rm a l,” ne ve r s e e me d c on fu se d, ne ve r o ff e re d a ny re sis ta nc e , a ndg a ve sp e c if ic direc tions to the gun and shells. On cross-examination, Detec tive Morse stated tha t he did not notice if the app e lla nt wa s unst e a dy on his fe e t, an d h e a c kn ow le dg e d th a t he didno t a sk the app e lla nt i f the appe llant wanted to wa ive his rig hts.

L ieutenant Warr en testified that he learned off icer s had found the appellant and that he dr ove to the appellant’ s location. When he arrived, the appellant was ly ing on the g round with his hands cuff ed behind his ba ck, and De tective Morse was finishing Miranda w arning s. Offic ers stood the appellant up, a nd L ieutenant Warr en wa lked the appe llant to his pol ice vehicle. He put his arm

aro un d th e app e lla nt a nd a sk e d if the app e lla nt wa nte d to te ll him wh a t ha d h app e ne d to the vic tim

. Th e app e lla nt s a id y e s a ndtol d h im a bo ut the s ho ot ing . Lie ute na nt Wa rr e n p ut the app e lla nt i nto his v e h ic le a n d p u t a tr a n s mi tt e r d e v ic e o n th e d a s h b o ar d to r e c o r d w h a t w a s b e in g said in the vehicle. Although the transmitter was on the dashboa rd, Lieutenant Warr en did not tell the appellant about it. The appe llant then led offic ers to B ean’ s Creek. Lieutenant Warr en said that the appe llant g a ve sp e c if

ic de ta ils abo ut the c ri me s a nddidno t a c t li ke he ha d c on su me d a lc oh ol o r d ru g s.

On cr oss-examination, L ieutenant W arr en testi fied that De tective Morse asked the appellant if he unde rstood his rights a nd the appe llant said y es. L ieutenant Warren never repe ated the Miranda

warnings f

or the a ppellant. He a cknowledg ed that the a ppellant’s st atements c apture d by the transmitter we re r ecor ded and tha t a written tra nscript of the r ecor ding show s parts of the a ppellant’s

conver sation with L ieutenant Warr en we re inaudible.

Ag e nt B a rh a m t e s t i f

i e d t h a t o n O c t o b e r 1 7
, 2 0 0 3
, h e a t t e n d e d t h e v i c t i m ’ s a u t o p s yin Nashville and visited the appe llant at Vande rbilt Hospital. Age nt Ba rham a dvised the appe llant of his rights a nd told the appellant that he ne eded t o s p ea k wi th him about the victim’s death. The appellant wa s hooked up to a dialy sis machine and s eeme d letharg ic, s o Ag ent B arha m decided not to interview him at that time. On October 20, Ag ent Ba rham visited the appellant at Harton Reg ional Me dic a l Ce nte r i n T ull a ho ma . H e read Mira nd a wa rn ing s to the app e lla nt, a ndthe app e lla nt s a id that he re membere d them from his arr est. The a ppellant ag ree d to talk, and Ag ent Barham took notes during the in t er v i ew

. He l eft the hospital and ty ped out the appe llant’s statement. That afte rnoon, h e o btained the a ppellant’s ey eg lasses and r eturne d to the hospital. He re ad the appellant’ s statement to him, and the appe llant rea d it. The appellant seeme d alert, made no c hang es to the statement, and signed it. On cross-examination, Ag ent Barha m acknow ledg ed that he did not-7-

a sk the app e lla nt if he wa nte d to wa ive his ri g hts a nd that a g ua rd wa s pr e se nt wh ile he sp ok e wi th the app e lla nt at V a nd e rb ilt a ndHa rt on ho sp ita ls.

The S tate reca lled L ieutenant W arr en to testify

. He said that on October 28, 2003, he was at the sheriff’s de par t m en t , an d the appe llant was in the jail. A cor rec tions officer

approa ched L ieutenant Warr en and told him that a man in t h e l o b by wanted to spe ak with him. L ieutenant Warren w ent to the lobby and spoke w ith the appellant’s br other, who sa id that the ap p el l ant had

a sk e d f or L ie ute na nt Wa

rr e n a ndne e de d to te ll the lie ute na nt s ome thi ng . Lie ute na nt Wa rr e n to ld the appe llant’s brother tha t he could not speak with t h e ap p el l an t beca use the a ppellant had a n attorney and returned to his office

. A short time later, a corr ections off

icer telephoned Lieutenant Warren a nd told him t hat the appe llant wanted to spea k with him. Lieutenant Warr en had of fice rs b ring the appe llant to his office a nd went over a wa iver of rights form with the appellant. The appellant sig ned the f

orm and said that he still wanted to spe ak with L ieutenant Warr en without an attorney prese nt. The appe llant said he did not kill the victim but acknowledg ed he hid f rom police and disposed of the shotgun a nd shells. L ieutenant Warren tape rec orded his c onversa tion with the

app e lla nt a nd sa id the app e lla nt re sp on de d to his qu e sti on s a nddidno t se e m c on fu se d. On c ro ssexamination, L ieutenant Warr en said he initially refused to speak w ith the appellant bec ause he “wa nted the [appellant’s] reque st to go thoug h an off icial per son, instead of a

family member.”

The trial c ourt d en i ed the appellant’s motion to suppress his statements. Reg arding the appellant’s October

16 confe ssion to L ieutenant Warr en, the tria l court ruled that the appellant

rec eived Mira nda wa

rning s and voluntarily waived his rights. Reg arding the appe llant’s October 20 statement to Ag ent B ar h am , t he trial c ourt found nothing improper. F inally , reg arding the appellant’ s October

28 statement to L ieutenant Warren, the trial court c oncluded that the a ppellant had not bee n coer ced or forc ed into g iving the sta tement and that the a ppellant had a

rig ht to speak wi th Lie ute na nt Wa

rr e n w ith ou t hi s a tto rn e y

pr e se nt.

I n revie wing a trial c ourt’s dete rminations reg arding a suppre ssion hearing , “[q] uestions of

cre dibilit y

of the witnesse s, the weight and value of the evidenc e, and r esolution of conflicts in the evidenc e ar e matter s entrusted to the trial judge as the trier of fac t.” State v. Odom, 928 S.W .2d 18, 23 (T e nn . 1 99 6) . T hu s, “ a tr ia l c ou rt ’s fi nd ing s o f f

a c t in a su pp re ssi on he ari ng wi ll b e up he ld u nle ss the evi d en ce preponde rate s otherwise.” I d. Neve rtheless, a ppellate c ourts will review the trial court’s a pplication of law to the f

acts pure ly

de novo. See State v. Walton, 41 S.W .3d 75, 81 (Tenn. 2001). Furthermore
, the S tate, as the prevailing party
, is “entitled to the s trong est leg itimate view of the e vidence adduce d at the suppre ssion hearing as well as all reasonable and leg itimate infere nces that ma y be dr a wn fr om tha t e vid e nc e .” Od om, 92 8 S. W.2 d at 23

. Mo re ov e r, we no te that “ in

e va luatin g the c or

re c tne ss o f a

tr ia l c ou rt ’s ru lin g on a

pr e tr ia l mo tio n to su pp re ss, app e llate c ou rt s may consider the proof a dduced both at the suppression hea ring and at tria l.” State v. Henning , 975 S.W .2d 290, 299 (Tenn. 1998)

.

I n Miranda v. A rizona, 384 U.S. 4 3 6
, 4 4 4
, 8 6 S. Ct . 1602, 1612 (1966), the U nited States Supreme Court held that “ the prosec ution ma y not use statements, whe ther e x culpatory or inc ulp a tory , s te mmi ng fr om cu sto dia l inte rr og a tio n of the de fe nd a nt unl e ss it dem on str a te s th e us e-8-

of pr oc e du ra l sa fe g ua

rd s e ff e c tiv e to s e c ur e the pr ivi le g e a g a ins t se lf -incri mi nat ion .” Th e se pr oc e du ra l sa fe g ua

rd s r e qu ir e that po lic e of

fi c e rs a dv ise a

de fe nd a nt o f h is o r h e r rig ht t o r e ma in silent a nd of his or her rig ht to counsel befor e they initiate c ustodial inter rog ation. State v. Sawy er, 156 S.W .3d 531, 5 3 4 (T en n

. 2005). I f these w arning s are not give n, statements elicited f rom the ind ivi du a l ma y

no t be a dmi tte d in the pr os e c uti on ’s c a se -i n- c hie f. Sta ns bu ry v. Ca lif or nia , 5 11 U. S. 3 1 8
, 3 2 2
, 1 1 4 S

. C t

. 1 5 2 6
, 1 5 2 8 ( 1 9 9 4 )

. A w a i v e r o f c o n s t i t u t i o n a l r i g h t s m u s tb e m a d e “ v o l u n t ar i l y, knowing ly

and intellige ntly .” Miranda , 384 U.S. at 444, 86 S. Ct. at 1612. I n deter mining whe ther a def endant ha s validly

waived his Mira nda rig hts, co u rt s must look t o the totality of the circ umstances. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992).

Reg arding the appellant’ s statements to L ieutenant Warr en on Oc tober 16 a nd Ag ent B arha m on October 20, Detec tive Morse testified tha t he g ave the appellant Mira nda wa rning s when off

icer s

arr ested the a

ppellant on Octobe r 16, and A g ent B arha m testified that he re -Mirandized the a ppellant

on Oc tob e r 20 be fo re the app e lla nt’ s inte rv ie w. Th e wi tne sse s te sti fi e d th a t th e app e lla nt a g re e d to speak w ith them and that he wa s alert a nd did not appea r to be under the influence of anything. The trial court obviously

acc redited the witnesses’ testimony
, co n cl u ding that the appellant r ece ived Miranda w arning s and voluntarily waived his rights. We can f ind no proof to re fute the tria l court’s finding s. As to the appellant’ s October 28 statement to L ieutenant Warr en, the e vidence shows that the app e lla nt s e nt w or d th ro ug h h is b ro the r a nda c or re c tio ns of

fi c e r tha t he wa nte d to s peak w ith L ieutenant Warren. Warren had office rs bring the appellant to his office and g ave t h e a p p ellant Mir a nd a warn ing s, a ndthe app e lla nt s ta te d th a t he wa nte d to sp e ak w ith ou t hi s a tto rn e y pr e se nt. Be cause the appe llant initi ate d t h e co n tact with L ieutenant Warr en, his rig ht to counsel was not vio la te d. Se e Ed wa

rd s v. Arizon a , 45 1 U. S. 47 7, 10 1 S. Ct. 18 80 (1 98 1)

. Th e tr ia l c ou rt pr op e rl y denied the a

ppellant’s first motion to suppress.

2. War ra ntl e ss A rr e st

I n th e app e lla nt’ s r e maining tw o mo tio ns to s up pr e ss, he arg ue d th a t th e tr ia l c ou rt sh ou ld

su pp re ss a ll e vid e nc e ob ta ine d as a re su lt o f h is w arr a ntl e ss a rr e st b e c a us e the po lic e ha d n o p ro ba ble

cause to arre st him. At t he suppre ssion hearing , Offic er F oster t estified that the victim’s sister

re po rt e d h im m iss ing on Oc tob e r 1 4, 20 03 . T he ne xt da y , Of fi c e r F os te r s po ke wi th h e r, a ndsh e tol d him th at the vic tim

a ndthe app e lla nt “ ha d b e e n h a ng ing ou t to g e the r. ” As a re su lt o f h is

conver sation with her, Of fice r F oste r went to the Pi ckett fa rmhouse and notice d a y ellow pickup truck pa rked the re. Offic er Foster knocked on the door a nd spoke with the appe llant, who was ve ry nervous. The appellant told Off icer Foster that he last saw the victim on Saturda y , October 11 betwee n 8:00 and 9:00 a.m. and that the victim lef t w ith a blonde fe male and ma y

have be en hea ded toward F ay etteville. The a ppellant neve r mentioned that he had be en living w ith the victim but gave Offic er F oster dire ctions to the victim’s trailer. Of fice r F oster we nt there a nd discovere d the victim’s bo dy . O n c ro ss- e xami na tio n, Of fi c e r F os te r s ta te d th a t w he n h e fi rs t arrived at th e Pic ke tt farmhouse, the y ellow pickup truc k had no sig nificanc e.

I nvestig ator B ell testified that on Octobe r 15, 2003, Off icer Fo s t er telephoned him fr om outside the victim’s trailer, sa id he was w orking on a missing pe rson case , and said he smelled what-9-

he th o u g h t w a s a

d e a d b o d y

. I n v e s ti g a to r

B e ll to ldO f

f ic e r F o s te r to e n te r th e tr a il e r , a n d O ffice r Foster telephoned him ag ain later and re ported finding t h e v i ct i m

. I nvestig ator B ell went to the

s c e n e , w e n ti n t o t h e v i c t i m ’ s b e d r o o m , l o o k e d u n d e r a s h e e t , a n d s a w t h e v i c t i m ’ s d e c a yi n g b o d y. I nvestig ator B ell noticed a lot of bl ood in the room but noticed that a c lean white she et cove red the vic tim . He imm e diate ly su sp e c te d fou l pla y . T he vic tim ’s ne ig hb or s b e g a n a rrivi ng a t th e tr a ile r t o find out what wa s g oing on. Jean Grant and other neighbor s told I nvestig ator Bell that the appe llant had bee n living in the t ra i ler with the victim. I nvestig ator B ell also learned fr om neig hbors that J ere my Pickett, a re lative of the a ppellant, had tra ded his small y ellow pi ckup truc k for the

app e lla nt’ s b a ss b oa t a ndthat th e pic ku p w a s u su a lly pa rk e d at the vic tim ’s tr a ile r. I nv e sti g a tor B e ll spoke with Off

icer Foster , and Of

fi ce r F oster told him about speaking with the appellant e arlier

. I nvestig ator B ell decide d that he nee ded to speak with the appellant a nd went to the fa rmhouse about 3:00 a.m. He noticed a sm all y ellow pi ckup parked there. The ba ck door of the home wa s open, and the appe llant was g one. Howeve r, a cooler containing ice a nd beer

was in the pickup. Investig ator Be l l l ater located Jeremy

Pickett, and he told I nvestig ator B ell that he had tr aded his truc k for the victim’s, not the appellant’s, boat.

On cr oss-examination, I nvestig ator B ell stated that he did not find anything with the ap p el l an t ’s n am e on it in the trailer and tha t he did not see a ny thing in the tra iler to conne ct the appellant to it. He stated that he knew of no arg ument betwee n the vi ctim and the appellant at the time of the appellant’ s arr est, that he went to the Pickett f armhouse wanting only

to speak with the appellant, and that he did not g et a sear ch war rant for the farmhouse. Howeve r, he said the appe llant

was a “possible suspect be cause he lived ther e [with the victim] .”

The trial c ourt ruled that many fac ts linked the appellant to the victim’s death, including the appellant’ s living with the victim and his being nervous when Officer Foster spoke wit h him. The trial court also conclude d that the appe llant was “hiding out” in the trac tor trailer rig when of

fice rs discovere d him and that this was “a ve ry important fac tor” a nd “[a]n indi cation of g uilt.” The trial court rule d that the officers had a reasonable basis for the appellant’s wa rra ntless arre st and denied his tw o mo tio ns

.

Te nn e sse e Cod e An no ta te d s e c tio n 4 0- 7- 10 3( a )( 3) pr ov ide s th a t a n o ff ic e r m a y arr e st a pe rs on wi tho ut a

wa rr a nt “ [w]he n a

fe lon y ha s in fa c t be e n c omm itt e d, a nd the of fi c e r ha s r e a so na

ble

cause for be lieving the person a rre s t ed t o have c ommitt ed [it] .” I n the instant case , upon the dis c ov e ry of the vic tim a nd the c ir c ums ta nc e s sur ro un din g the dis c ov e ry of his bo dy , it wa s p ro ba ble that a homicide ha d been committed. Homicide, in its vary ing forms, is a felony . See Te nn. Code Ann. § 39-13-201. T hus, our nex t inquiry is whether police rea sonably believed the appellant committed the offe nse. See State v. L ewis, 36 S.W.3d 8 8 , 98 (Tenn. Crim. App. 2000) . Our supreme c ourt has explained that “a rea sonable g round for suspicion, supported by circ umstances indicative of a n illega l act,” c onstitut es proba ble caus e. State v. Henning , 975 S.W .2d 290, 294 (Tenn. 1998)

.

Courts should determine th e e x istence of probable cause afte r asse ssing a ll of the information

a va ila ble to the of

fi c e r at the tim e of arr e st. Se e Sta te v. Woo ds , 806 S.W. 2d 20 5, 21 2 (T e nn . Crim.-10-

App. 1990). To this end, Tennessee Rule of C riminal Procedur e 4(b) provides that in the application for the issuanc e of a n arr est war rant, “ [t ]he finding of

probable cause shall be base d on evidenc e, which may

be hea rsay in whole or in part provi d ed t h er e i s a s u bstantial basis to believe . . . the

source of the he arsa y

is credible . . . a nd .

. . there is a fac tual basis for the information furnishe d.” I th a s l o n g b e e n e s t ab l i s h e d t h a t“ [w ]h i l e t h i s ru l e ap p l i e s i t s e l f p ar t i c u l ar l y

t o w arr a n t s f

o r arr e s t, the same principle must be consider ed applica ble to establish p ro b able c ause w here an ar rest has been made without a wa

rra nt.” State v. Raspber

ry , 640 S.W .2d 227, 228 (Tenn. Crim. App. 1982) ;

see a lso St ate v. Tay s, 836 S.W .2d 596, 600 (Tenn. Crim. App. 1992)

.

I n this case, Of

fice r F oster spoke with the victim’s sister, and she told him that the appellant

a ndthe vic tim ha d be e n “h a ng ing ou t tog e the r” a nd that th e vic tim wa s mi ssi ng . A ft e r s pe a kin g wi th her, O ffice r F oster we nt to t h e Pickett farmhouse and spoke w ith the appellant. Of fice r F oster noticed that the a

ppellant was ne rvous, and the a ppellant admitted see ing the victim on Oc tober 11, three day s befor e the victim fa iled to r eport to w ork. After Offic er F oster discove red the victim’s decay ing body , I nvestig ator B ell went to the scene , and Offic er Foster told Investig ator B ell about his conversation with the appellant. Neig hbors also told I nvestig ator B ell that the appe llant had bee n living with the victim, and neig hbor Jean Gra nt re ported that she la st saw the victim alive on the morning of Oc tober 11 or 12, sever al day s befor e office rs discover ed the victim. She also said the victim was with the appel l an t

. I n v estig ator B ell went to the Pickett fa rmhouse to speak with the appellant a nd noticed a y ellow pickup, whi ch n ei gh b ors had r eporte d seeing fre quently at the victim’s trailer. I nvestig ator Bell di scover ed that the appellant had lef t the home with the bac k door standing open and a

cooler full of i ce and beer i n the pickup, indicating a hasty retre at and r esulting in a leg itimate infere nce tha t the appellant wa s involved in the victim’s death. Then, a fter se arc hing for the app el l an t , office rs found him hiding in the tra ctor tra iler’s slee per be rth, which De tective Mo rs e e sti ma te d ha d a tempe ratur e of on e hu nd re d ten de g re e s. I n lig ht o f a ll o f the c ir c ums ta nc e s,

we c onclude that the of

fice rs had pr obable c ause to a rre st the appellant.

We note that the appe llant arg ues that the tr i al co urt “c reated its own conclusions and

acc epted without critical analy sis or fai r as sessment contra dictory and per jurious responses f

rom po lic e of fi c e rs a nd inv e st igat ors .” Ho we ve r, the tr ia l c ou rt , a s th e tr ie r o f f a c t, w a s in the be st position t o assess the cre dibilit y of the witnesses, determine the weig ht and value to beaff orded the evidenc e, and r esolve a ny conflicts in the evide nce. O dom, 928 S

. W .2d at 23. The tria l court obviously acc redited the office rs’ testimony and resolved all conflicts in the evidenc e in fa vor of the S t at e. T h e a p p el l an tt h o ro u gh l y cr o s s -e x am i n ed t h e S t at e’ s wi t n es s es at t h e s u p p re s s i o n h ea ri n gs and neve r cla imed at the hea ring s that the wi t n es s es we re c ommitt ing pe rjury . The trial c ourt pr op e rl y de nie d th e app e lla nt’ s mo tio ns to s up pr e ss.

C. J ury ’s Use of

Ex trane ous I nformation

Next, the appellant claims the trial c ourt err ed by allowing the jury

to use a transcript of the appellant’ s audiotaped c onfession during deliberations because the transc ri p t h ad not been introduced into evide nce

. The State c ontends that the jurors we re only allowed to examine the
transcript for determining what portion of t he audiotape t hey wanted to hear a nd that the trial court-11-

admonished the jury

at least thre e times that it could not consider the transcript in determining the appellant’ s g uilt. W e conc lude that the appe llant is not entit led to relief

. During L ieutenant Warr en’s testimony , the State introduced into e vidence an audiotape of his October 16 conver sation with the appellant made while they wer e sitting in Lieutenant Warr en’s police vehic le. The State a lso asked Lieutenant Warr en about a transcript of th e audiotape and pa sse d o ut c op ie s o f the tr a ns c ri pt to e a c h jur or

. Th e tr ia l c ou rt ins truc te d th e jury

that th e pu rp os e of the tr a ns c ri pt w a s to he lp the jur or s f oll ow wh a t th e y

he ard on the tape bu t that the tape “ c on tr ols

over a ny decisions y ou make a

bout this t estimony .” The State mar k ed t h e tra nscript for identification purpose s only and neve r m ade it an ex hibit. After the j ury listened to the t ape a nd was excused from the c ourtroom, the trial c ourt stated,

I don’t know wha t on earth y ou plan on doing or try ing to do with that tape, but I

sure don’ t want us to have to put the jury throug h much more with re g ard to that. Just a sug g estion in t h e fu t ure, if w e eve r [have] som ething like that wher e there are big g aps of time, just dead tim e , w e ne e d to g e t to g e the r b e fo re tr ia l a ndc ut tha t ou t.

During jury

deliberations, the jury returne d to the courtroom and informed the trial court that it wanted to listen to the auidotape a g ain. The tria l court stated,

I don’t want y ou to ta lk to me about how y ou’re leaning or anything about why

y ou want to listen to the tape, but is there a particular pa rt of the tape that we c an cue up? You know, this thing just runs from be g inn ing to e nd . T he y

ha ve no t index e d it

int o p art s. I f the re ’s a loc a tio n in the tr a ns c ri pt tha t y ou can ide nti fy fo r u s, we c ou ld possiblyspeed the proce ss up by try ing to g et t o it for y ou so y ou can listen to it

. I s there any particula r part or do y ou want to listen to the wh o l e t h i n g?

A j ur or re sp on de d th a t if

the jury c ou ld l oo k at th e tra ns c ri pt, it c ou ld f indthe pa

rt of the tape it wanted to he ar. The trial court pa ssed out transcrip t s to eac h juror, and one of the juror s stated, “Tha t’s all we ne ed re al l y

. W e d on’t rea lly need to listen.” The trial court told the jury that the
transcript “is not the ex act thing,” that the jury “re ally oug ht to lis ten to the tape,” that the transc ript was he lpful to find a location on the tape, a nd that the jury could take the transcripts back to the jury room for tha t purpose. The defe nse objec ted, but the trial court stated, “I ’m go i n g t o let them do that. . . . Otherw ise, it’s two hours or more of just sitt ing the re.” The trial c ourt noted t hat the jury h ad al re ad y

re ad t h e t ra n s cr i p t o n ce an d t h at n o t h i n g i n t h e t ra n s cr i p twa s p ar t i cu l ar l y m i s l ea d i n g. The rec ord ref

lects that the jury

returne d to the jury

room and picke d out four or f ive transc ript pag es i tw a n t e d t o h e ar

o n t h e au d i o t ap e

. T h e c o rr e s p o n d i n g p o r t i o n o f t h e t ap e w a s p l a ye d f o r t h e j u r y,

a ndthe jury

c on tin ue d d e lib e ratio ns

.

Te nn e sse e Rul e of

Cr imi na l Pr oc e du re 30 .1 (2 00 5) state s a s f oll ow s:-12- Upon re tiring to c onsider its verdict the jury shall t ak e t o the jury room all exhibi ts a nd writing s which have be en re ceive d in evidence
, e xce pt d e po sit ion s, fo r the ir e xami na tio n d ur ing de lib e ratio ns , u nle ss the court, for g ood cause , determines t h at an ex hibit shoul d not be
take n to the jury

ro om.

B e c a us e the tr a ns c ri pt w a s in tr od uc e d f or ide nti fi c a tio n p ur

po se s o nly

a ndwa s n ot i ntr od uc e d in to evidenc e, the be st practice would have be en for the trial court not to allow the jur y t o t ake the
transcript copies into the jury room. Howe ver, the trial court instructe d the jury during L ieutenant Warren’ s testimonythat the transc ript was only an aid a nd that the tape, not the tra nscript, was the

e vid e nc e . Wh e n th e tr ia l c ou rt a llo we d th e jury

to take the tr a ns c ri pt c op ie s in to the jury ro om, it stated that the jury could us e the transcript for the pur pose of f inding the portion of the tape tha t the jury wa nte d to he ar. Ge ne ra lly , w e pr e su me that a jury ha s f oll ow e d th e tr ia l c ou rt ’s ins truc tio ns

. See State v. Butler
, 880 S.W .2d 395, 399 (Tenn. Crim. App. 1994). I n any event, the a

ppellant does not claim there is a materia l dif fer ence in the audiotape and the transcript. Also, during L ieutenant Warren’ s testimony , the jury was a llowed to rea d the trans cript whil e it listened to the tape. There fore , the jury

had alr eady

seen the transcript once bef ore, a nd we c onclude that a ny err or wa s harmless. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).

D. Corpus Delicti I nstruction

The a ppellant claims that the trial c ourt err ed by ref using to instruct the jury

that the cor

pus delicti of the c rimes could not be pr oven by the appe llant’s confe ssions alone. The State c ontends that the trial court properly denied the appellant’ s reque st for the spec ial corpus de licti inst ruction and that the a

ppellant’s conf

essions were amply

corr oborate d. We ag ree with the State.

A d e fe nd a nt h a s a “ c on sti tut ion a l rig ht to a co rr e c t and c omp le te c ha rg e of the la w. ” Sta te v. Tee l, 793 S.W .2d 236, 249 (Tenn. 1990) . Acc ording ly , trial co u rt s “s h o u ld give a re quested instruction if it is s upported by the evidence, embodies a party ’s theory , and is a c orre ct statement of t he law.” State v. Phipps, 883 S.W .2d 138, 150 n.20 (Tenn. Crim. App. 1994) . Howeve r, trial
courts nee d not give reque sted instructions if the substance of the instructions is cover ed in the g ener al cha

rg e. State v. Z irkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995).

“Corpus delicti” litera lly

means the body of the crime. State v. Shephe rd, 862 S.W.2d 557, 56 4 ( Te nn . Crim. Ap p. 19 92 ). I n o rd e r t o e sta bli sh the c or

pu s d e lic ti of a c ri me , th e Sta te mus t

e stabli s h b e y o n d a r e a s o n ab l e d o u b t ( 1 ) t h a t a c e r t a i n r e s u l t h a s b e e n p r o d u c e d a n d ( 2 ) t ha t so me pe rs on is c ri mina lly

re sp on sib le fo r the a c t. S ta te v. Jone s, 15 S.W. 3d88 0, 89 0- 91 (T e nn . Crim. App. 1999). State v. Smith, 24 S .W.3d 274, 281 (Tenn. 2000) (c iting Ashby v. State, 139 S.W . 872, 875 (Tenn. 1911) ). Some corr oboratin g e v id e n c e is r equire d which, indepe ndently of the c onfession,
te nd s to e sta

bli sh the c or

pu s d e lic ti o f th e of

fe ns e c ha rg e d. I d. Ho we ve r, wh e re the re is a

c on fe s s i o n , t h e c o rr o b o r a t i v e e v i d e n c e “ n e e d n o tb e a s c o n v i n c i n g a s t h e e v i d e n c e n e c e s s ar y to establish a corpus delicti in the absence of any confe ssion.” Ricketts v. State, 241 S.W .2d 604, 606 (Tenn. 1951) . The c orrobor ating evidenc e is sufficie nt to sustain a c onviction if “it tends to connec t-13-

the def endant with the c ommissi on of the off ense, a lthough the e vidence is slight, and entitled, whe n standing by

itself, to but littl e consideration.” I d.; see a lso Sm ith, 24 S.W .3d at 281. “A c onfession may sustain a co n viction where there is other evidenc e suff icient to show the commission of the crime by someone.” Tay lor v. State, 479 S.W .2d 659, 661-62 (Te nn. Crim. App. 1972).

We h a ve re vie we d th e jury ins truc tio ns , andini tia lly no te that th e tr ia l c ou rt pr op e rl y instructed the jury

on the cha

rg ed off enses a nd all lesser inc luded offen s es . Reg arding the

app e lla nt’ s c on fe ssi on , th e tr ia l c ou rt ins truc te d th e jury

a s f oll ow s:

Now, ladies a nd g entlemen, a lso evidence of a c onfession has been introduc ed in this trial. A confes s i o n i s a statement by the de fe nd a nt that he e ng a g e d in c on du c t wh ic h c on sti tut e s the crime char g ed and is a n acknow ledg ment of g uilt it self. Th e Cou rt

ha s rule d th a t th e con fe ssi on is a dmi ssi ble in evidenc e, b u t it is y o u r d u ty to ju d g e it ’ s tr u th

. I n d o in g s o y ou should consider the circumstanc es under which the c onfession wa s obtained as w ell as any

evidenc e which c ontradicts all or pa rt of the statements made. Y ou must consider all the stateme nts made by the defe ndant, whethe r fa vorable or unfa vorable to him, and y ou must not disreg ard a ny

of them without g ood rea son. I f t he evide nce in the

case leads y ou to believe that the confe ssion or any part of it is unt rue

or wa s never

made, y ou should disre g ard it, or that portion which y ou do not believe. You ar e the sole judge of the we ight - - wha t weig ht should be g iven t o those portions of t he confession which y ou believe a nd y ou sh ou ld c on sid e r the m a lon g wi th a ll othe r e vid e nc e in the c a se in deter mining the de fenda nt’s g uilt or innocence

.

The trial co urt’s instructions reg arding the appe llant’s confe ssions closely followed Tenne ssee Patter n J ury

I nstructions--Criminal 42.12, the instruction for a confession. The instructions clear ly

advised the jurors that it wa s their duty to de termine the truth of the conf essions and the c ircumstance s surrounding them and that the jury s h o u l d d i s rega rd all or a ny

part of the

co n fe s s i o n s t h at i tb el i ev ed we re u n t ru e. I n ad d i t i o n , t h e j u rywa s ad v i s ed t h at i twa s t h e s o l e j u d ge of wha t weig ht should be g iven to the confe ssions a nd that all other evidenc e in the case should be considere d along with the confe ssions in determining guilt or i nnocenc e. We are unable to conc lude that the trial court should have g iven the re quested c orpus delicti instruction.

I n any event, the app el l ant’s conf essions were sufficie ntly

corr oborate d in this case. The appellant told offic ers that on Saturday , October 11, he stood in the doorwa y of the victim’s bedr oom

a ndsh ot the sle e pin g vic tim wi th a sixte e n- g a ug e sh otg un . T he app e lla nt c ov e re d th e vic tim wi th

a sh e e t th a t ha d be e n on the fl oo r, pic ke d up the sp e nt sh otg un sh e ll, a nd c arrie d the vic tim ’s pa nts to the living room. Th er e, h e t o o k m oney out of the victim’s wallet. He left the shotg un in the Be an’s Creek area and abandoned the victim’s wallet in a cree k in Moore County . Offic ers f ound-14-

the vic tim ’s de c omp os ing bo dy in b e d a ndc ov e red w ith a c le a n s he e t, a nda

pa ir of pa nts we re in the living r oom. Office rs did not find a spent shotg un shell in the bedroom. They went to the Be an’s C re ek ar ea and locate d the shotg un and some unused she lls, and L ieutenant Warr en found the victim’s wallet in Moore County . Dr. Char les Har lan perf ormed the vic tim’s autopsy on October 17 and stated tha t the victim had been shot in the forehea d and had been dead about a week, “g ive or take a fe w day s,” which w ould have put his time of death around Oc tober 11. T h e ev idence at trial sufficie ntly

corr oborate d the appe llant’s confe ssions, and he is not entitled to relief.

E. Prosecutoria l Misconduct

Finally , the appellant claims that the prosec utor committed prosec utorial misconduct during closing arg uments by

express i n g a p ersona l opinion about the appellant’s g uilt and by making an improper c omment. The appe llant acknowle dg es that while the pr osecutor’ s comment, “standing alone, pr obably

did not rise to the level of a denial of due proce ss,” the comment, al o ng with the other e rror s that occur

red in this case , denied the appellant his right to a fa ir trial. The State c ontends that the prosec utor’s comments we re not improper. We conclude that the appe llant is not entit led to relief.

During the State’s closing arg ument, the prosec utor told the jury that the a p p el lant had preme ditated killing the victim and ha d taken the vic tim’s wallet, money
, and truc k. The prose cutor the n sta te d, “ L a die s and g e ntl e me n, thi s man is g uil ty of wh a t he ’s c ha

rg e d w ith ,” a ndthe de fe ns e objected. T he following exchang e occ urre d:

THE COURT: All rig h t , it’s arg ument. I ’ll let y ou -- y ou haven’ t stepped ac ross the line y et. Go ahe ad.

[TH E ST AT E]: T a c tic s, la wy e rs ’ t a c tic s, ob je c t in the mid dle of a pe rson’s ar g ument and throw the m off.

[DEFENSE COUNSEL ]: Your Honor, I object to that. That

wa s –

THE COURT: [Genera l] , that’s unca lled for.

The State’s c losing a

rg ument resumed.

I t is we ll- e sta

bli sh e d th a t c los ing arg ume nt i s a n imp orta nt too l fo r b othpa rt ie s d ur ing a

tr ia l; thus, counsel is g ener ally

g iven wide latitude during closing arg ument, and the trial court is g rante d wide discre tion in controlling closing arg uments. See S tate v. Carruthe rs, 35 S.W.3d 516, 577-78 (Tenn. 200 0 ) (a p p endix). “Notwithstanding suc h, arg uments must be tempera te, base d upon the evidenc e introduce d at t rial, relevant to the i ssues being tried, and not otherwise improper under the fac ts or law.” State v. G oltz , 111 S.W .3d 1, 5 (Tenn. Crim. App. 2003)

.-15-

“ I n d e te rm ini ng wh e the r sta te me nts ma de in cl os ing arg ume nt c on sti tut e re ve rs ibl e e rr or , it is ne c e ssa ry to de te rm ine wh e the r the state me nts we re imp ro pe r an d, if so , whe the r the imp ro pr ie ty

a f f e c t e d t h e v e r d i c t

. ” S t a t e v

. P u l l i a m , 9 5 0 S

. W

. 2 d 3 6 0
, 3 6 7 ( T e n n

. C r i m

. A p p

. 1 9 9 6 )

. In

c on ne c tio n w ith thi s is su e , w e mus t e xami ne the fo llo wi ng fa c tor s:

(1) the conduct complained of viewe d in context and in li g ht of the fa c ts a ndc ir c ums ta nc e s o f the c a se [;]

(2) the c urative m ea s u res unde rtake n by the court and the pr os e c uti on [;]

(3 ) the int e nt o f the pr os e c uto r i n ma kin g the state me nt[; ]

(4) the cumulative eff

ect of the improper c onduct and a ny other e rror s in the rec ord[; and]

(5) the r elative stre ng th or wea kness of the c ase.

I d. at 368 (quoting J udg e v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

W e f i n d n o t h i n g i n ap p r o p r i a t e ab o u tt h e p r o s e c u t o r ’ s s t a t i n g t h a tt h e ap p e l l a n tw a s g u i l t y. Gr a nte d, a

pr os e c uto r s ho uldno t e xpre ss h is o r h e r p e rs on a l op ini on abo ut a de fe nd a nt’ s g uil t. Goltz, 111 S .W.3d at 6. Howeve r, in our view, the prosec utor was simply revie wing the evidenc e ag ainst the appe llant and stating the State’s position in the case, i.e ., that the appellant was g uiltyof the crimes char g ed. The ref ore, d ef ense counsel’s objec tion was improper. The prosec utor’s comment about def

ense counsel’s tactics, howeve r, was a lso improper. See State v. G arne r Dwig ht Padg ett, No. M 2 0 0 3 -0 0 5 42-CCA-R3-CD, 2004 Tenn. Crim. App. LEXI S 938, at *34 (Nashville, Oc t. 21
, 20 04 ) (s ta tin g that “ [t]he pr os e c uti on is n ot p e rm itt e d to re fl e c t un fa vo ra bly up on de fe ns e

c ou ns e l or

the tr ia l ta c tic s e mpl oy e d d ur ing the c ou rs e of the tr ia l” ). Ne ve rt

he le ss, g ive n th e str e ng th of the Sta te ’s c ase, we con clud e that th e Sta te ’s c omm e nt w a s h arm le ss. Se e Te nn . R. Cr im. P. 52(a) ; Tenn. R. App. P. 36(b).

III. Conclusi on

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nts of

the tr ia l c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE